Court Sits As 9-person Legislature In New Rights Sweep

Commentary

July 3, 1986|By George Will, Washington Post Writers Group

WASHINGTON -- A mystery that foils inquiry is: By what principle does Justice Blackmun limit the sweep of the constitutional ``privacy right`` that is his intense preoccupation? And are his colleagues, among whom he found himself in a minority in a recent case, any less arbitrary regarding privacy?

The Supreme Court has affirmed (5-4) the constitutionality of a Georgia statute that criminalizes consensual sodomy, as the statute applies to homosexual sodomy. Justice White, joined by Burger, Powell, Rehnquist and O`Connor, said none of the cases in which the court invented and elaborated a ``privacy right`` allows the use of that right as a constitutional scythe to mow down anti-sodomy laws. Why not? White did not really say.

He said sodomy is not like other activities protected by various permutations of the court-manufactured privacy right. That is self-evidently true. What is neither self-evident nor explained by White is this: What principle, derived from the ``language and design`` of the Constitution (White`s ostensible criteria), requires the court to identify so many activities as fundamental rights enjoying constitutional protection under the privacy right, but requires the court, as a matter of principle, to exclude consensual sodomy from that protection?

The ``privacy`` right, which the Framers of the Constitution neglected to mention, has recently been given the status as a fundamental right in cases striking down laws that limited freedom of choice regarding child rearing and education (for example, the right to send a child to private school), marriage (the right to inter-racial marriage), contraception (the right to use or distribute contraceptives), abortion. These various manifestations of the privacy right have been identified variously as rights ``implicit in the concept of ordered liberty`` or rights such that ``neither liberty nor justice would exist if (they) were sacrificed`` or rights ``deeply rooted in this nation`s history and tradition.``

Regarding sodomy, White and the majority clearly have the court`s criteria on their side. Sodomy was considered a crime in all 13 states that ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, 32 of 37 states had criminal sodomy laws. Until 1961, all 50 states did; 25 still do. As White says, it is ``at best, facetious`` to call a right to consensual sodomy a deeply rooted tradition, or implicit in the concept of ordered liberty, or something without which liberty and justice would vanish.

But by those standards, how, precisely, has the court concluded that deeply rooted traditions, ordered liberty and justice are incompatible with, say, a law restricting the sale of contraceptives? A law restricitng abortion? A law restricting freedom of choice of a marriage partner? Such laws may be unwise or unjust or both. But what is White`s principle that explains why the Constitution -- that is what he is interpreting -- says such laws must fall but anti-sodomy laws may stand?

Blackmun, dissenting in company with Brennan, Marshall and Stevens, rests his even ricketier argument on words Justice Brandeis used in a dissent -- words Blackmun brandishes as though they are a constitutional principle. Blackmun says that what is at issue here (and, one must assume, almost everywhere) is ``the most comprehensive of rights,`` namely ``the right to be let alone.``

Well, now. That right sure can be comprehensive. Let`s see: a right to be let alone by the IRS, the police, the draft board, the law, government generally. . .

The ``right to be let alone`` is less a constitutional principle than a rhetorical flourish of the sort that often enlivens dissents. Blackmun thinks anti-sodomy laws are morally mistaken. White rightly says the court is required to say not if laws are ``wise and desirable,`` but only if they are proscribed by the Constitution`s ``language or design.`` And White is right that it would be arbitrary to wring from the court`s various ``privacy right`` criteria a right to constitutional protection for consensual homosexual sodomy.

But White is wrong to think the court has made a principled distinction between that right and all the other privacy rights that the court has recently discovered loitering in the ``penumbra`` of various constitutional provisions.

The court has been skiing down a slippery slope of judicial legislation, manufacturing privacy rights lickety-split. Now White and four others want to stop. That desire is prudent, but it is not noticeably more principled than the desire of the other four justices to ski on.

This decision was just another vote in the court sitting as a nine-person legislature. The vote revealed the inner impulses of the justices, but not the inner logic of the Constitution.